U.S. Department of Labor resumes flow of Opinion Letters

As we have previously reported, the U.S. Department of Labor announced last summer that it would resume issuing Opinion Letters offering interpretive guidance under the Fair Labor Standards Act. The decades-long practice of issuing Opinion Letters had been halted in 2009 under the Obama Administration’s leadership of the DOL. Since the DOL announcement last summer, it had not issued any Opinion Letters – until now.

On January 5, the DOL issued, or more accurately, reinstated, 17 Opinion Letters that had been withdrawn in March 2009. These Opinion Letters had been issued in early January 2009, in the final weeks of the Bush Administration. In early March 2009, the Obama DOL sent letters to each of the requestors of these Opinion Letters advising that, because the letters had not left the DOL’s mailroom before the new leadership of the DOL assumed authority, they were being withdrawn. Of course, later in 2009 the Obama DOL announced that it would no longer issue Opinion Letters at all.

Now, the Trump DOL has seen fit to reinstate almost all of the Opinion Letters that had been withdrawn for what appeared to have been political reasons.

The 17 re-released Opinion Letters address a wide variety of subjects under the FLSA, including, among others, white collar exemption issues, the compensability of certain on-call time, regular rate and overtime computations on certain bonus compensation, and certain deductions from salary under the salary basis requirements of the white-collar exemptions. The Opinion Letters, enumerated as FLSA2018-1 through FLSA2018-17, are published on the DOL’s website.

It remains to be seen whether the DOL will eventually reissue or reinstate three other 2009 Opinion Letters that were withdrawn by the Obama DOL. They involve issues related to the tip credit for tipped employees, and the fluctuating workweek and its interplay with premium pay for hours worked on Sundays and holidays.

We recently reported that President Trump will have to re-nominate a number of candidates for labor-related positions, including his candidate for Wage and Hour Administrator, Cheryl Stanton. Many believe that until an Administrator is confirmed by the Senate, the flow of Opinion Letters will be restricted, particularly if the issues are controversial.

If you have any questions concerning the newly reinstated Opinion Letters, please contact a member of Constangy’s Wage and Hour Compliance & Litigation Practice Group or the Constangy lawyer of your choice.

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